New dimensions on cyber liability

Jurisdiction with regard to defamatory material in cyberspace is an issue that agitates the minds of all parties concerned, across the world.

AN Australian High Court pronouncement in the first week of December on a vital issue pertaining to cyberspace should generate all round interest in view of the rapidly growing base of Internet and the birth each day of newer and newer web sites. More than many of us, who are mere browsers of the Internet, the judicial order of the High Court of Victoria should cause extreme concern among those who actually operate web sites and post information generated by themselves or by others. The court has permitted a millionaire mining magnate, Joseph Gutnick of Victoria, to sue the famous Dow Jones news service in the United States for carrying an allegedly defamatory article against him in Baron's magazine and a web site, both run by Dow Jones.

While the judge did not give his verdict on whether the article in question was actually defamatory, his order was categorical that Gutnick was well within his right to initiate proceedings in his home country although the article in question was published online in a far away land. This would mean that the crucial issue is one of where the material is read or is likely to be read, rather than where it was originally published. To the defence plea that if Gutnick's petition was admitted, a publisher will have to evaluate the law of defamation in every country in the globe before publishing any material, the Court said: "In all except the most unusual of cases, identifying the person about whom the material is published will readily identify the defamation law to which that person may resort." This is a decision of great import that is likely to impact the future of Internet journalism itself.

Interestingly, the Australian court's stand is quite in contrast to a Zimbabwe case earlier this year when a journalist of The Guardian, Andrew Meldrum, was proceeded against by the Zimbabwean government as sequel to an article published in the newspaper's web site in the United Kingdom. Meldrum took the position that he was subject to the jurisdiction of only a U.K. criminal court. This was upheld.

Also germane to the issue at hand is the early 2001 ruling of a French court. A judge in Paris ordered Yahoo to censor Nazi-related auction items on its United States-based web sites so that French users of the web sites did not have access to information whose circulation was illegal in France, although it might have been constitutionally protected in the U.S. Yahoo, in its defence, cited among other reasons, a lack of technology to implement the directive without totally removing all the material concerned from its auction site. Unimpressed with this explanation, the French judge passed a stern order imposing a fine of 100,000 francs on Yahoo for each day of delay in submitting to the direction to block the information from its French viewers. The uncompromising position taken by the French judiciary naturally incensed civil liberties groups in the U.S.

The latter viewed this as a direct attack on the freedoms enshrined in the U.S. Constitution which could set the stage for further assaults on the rights of U.S. citizens through an unacceptable censorship of whatever France did not like but was permissible under U.S. law.

Yahoo, no doubt, acted within months to revise certain auction guidelines that removed a few Nazi-related items. The matter did not end there. In November 2001, a U.S. District Court judge in San Jose overturned the French ruling stating that the French court's order was not enforceable in the U.S. because the First Amendment of the U.S. Constitution protected sale or display of artefacts or expression of viewpoints even if they carried a political slant. Yahoo and civil libertarians were naturally elated. However, according to Carl S. Kaplan ("Was the French ruling on Yahoo such a victory after all?") of The New York Times, not many legal pundits endorsed what the San Jose judge said. Nor did they believe that the latter's order did in any way alter the ground position that an Internet company would have to necessarily submit itself to local laws, irrespective of where the company was founded or operating from. Yahoo did not feel the heat because it had no financial assets in France. If, however, it did have such assets, the French judgment would have been enforced against it in France with consequential adverse monetary impact.

We have, therefore, these conflicting judgments and other legal viewpoints that further highlight the difficulties of defining cyber liability and enforcing cyber law. It is in this context that we have to analyse an important provision of our own Information Technology Act, 2000.

Section 1(2) of the Act says:

It shall extend to the whole of India and, save as otherwise provided in this Act, it applies also to any offence or contravention thereunder committed outside India by any person.

This is rather ambitious. But then, how practical is this section? Are we not indulging in self-deception? Our experience in invoking our laws, against those residing abroad, both our own nationals and foreigners, has been unhappy, to say the least. The cases of Quattarocchi, Dawood Ibrahim and Anees Ibrahim are too recent to be forgotten. How many countries are ready to consider a cyber violation an extraditable offence? We have therefore to look upon Section 2 of the IT Act as not more than of symbolic value. Possibly this section has acquired some credibility from the Council of Europe Draft Convention on Cyber Crime adopted in 2001. The Convention did not exclude any criminal jurisdiction claimed by a country in accordance with its domestic law. Also, where two or more parties claimed such jurisdiction in respect of an offence recognised by the Convention, the parties concerned were required to consult one another and determine the most appropriate jurisdiction for prosecuting an offender.

THERE are several other issues relevant to cyberspace that remain unresolved and are open to varying interpretations. This makes cyber law, both civil and criminal, an absorbing yet unfathomable area that is going to exercise legal brains all over the world for a long time to come.

For instance, assuming that a particular material carried online is defamatory per se, is the author alone liable or is the carrier, very often the Internet Service Provider (ISP), also equally liable? This is a contentious matter that agitates the mind of every ISP who, when brought to book, puts up the defence that he has absolutely no control over what passes through the service that he provides.

We have two well-known cases that are often cited to clarify the role of the ISP. These relate to two famous U.S. names, Prodigy and CompuServe. The former was sued for defamatory statements made by one of its customers in a discussion group hosted by it, otherwise known as the `bulletin board'. The case was reduced to one of determining whether Prodigy was a "distributor" or a "publisher". The judge held Prodigy liable because of its own well-recognised position that it monitors and censors such discussions. The presumption was that the alleged defamatory material had been vetted by Prodigy, which still found it fit for being posted in the bulletin board.

In an identical situation, CompuServe got away on the ground that it was a mere distributor. It did not make any claim nor was any other evidence available to prove that it ever edited any material passing through its network. The moral of the story is that as long as you, as the medium-provider, do not tinker in any way with the information passing through your infrastructure, you are free from legal liability! Unless, of course, you are proactive in taking copies of what you had carried and actually distribute these copies to various persons, a role that is outside the perceived functions of an ISP.

Interestingly, my column has been made possible this time by the wealth of material that is available on the Internet. I would recommend a Google search to my readers to hunt for more material if they seek details of certain judgments cited by me. Alongside this, I would strongly commend to them an excellent recent publication, Cyber Law: The Indian Perspective (Stasher Law Publications, New Delhi) by Pavan Duggal, a knowledgeable practitioner in the Supreme Court of India. This is a well-compiled book that covers various facets of cyber law. It attempts a clinical analysis of the IT Act, 2000. One of its final chapters highlights the "grey areas" of the Act and opens up a debate on how soon we should take up the task of rewriting certain portions of the Act. There is also an elaborate reference to the first public interest litigation on Internet-related issues that was pending in the Delhi High Court at the time Duggal wrote his book. It will be interesting to know how this has proceeded further.

At the end of it all, the basic question is how far we are justified in trying to regulate the Internet. This is in the context of the ease with which this powerful medium has shown itself susceptible to the machinations of those who want to commercialise evils such as pornography. While pornography by itself is extremely harmful to impressionable minds, how do we restrain ourselves from stepping beyond, to proscribe points of view with which many of us may not agree, but that are nevertheless useful to gleaning differing perceptions of the same subject? This is an eternally unresolved issue. Is there not a danger of prudery killing innovation and enterprise?

Stanford Law School Professor Lawrence Lessig brings a refreshing approach to the dilemma. He believes that it will be preposterous to spurn all regulation, because the Internet has thrived on regulation. In his view, nothing should be done to tinker with what has worked "unimaginably well". The regulation that has governed Internet is "open access". This is a regulation that has fostered innovation. ("Rules that entrench the right to innovate have done well for us so far.") Lessig is undeniably persuasive. We can reject him only if we desire to whittle down the role that Internet now plays in our lives.